Understanding Prosecutorial Misconduct

District Attorneys in Colorado often “cross the line” in prosecuting individuals for alleged crimes for which they are charged. This is called prosecutorial misconduct. There are two sets of rules that govern the conduct of prosecutors. Laws that govern the fairness of the proceedings over which they have power – often called violations of due process – and ethical violations that run contrary to codes of ethics binding all lawyers and binding prosecutors to an even higher standard.

In a recent case in Colorado – the Supreme Court analyzed prosecutorial misconduct during the all critical closing argument phase of the trial … a time during which where the prosecutor is given the opportunity to give present not one – as is the case for the defense – but two different arguments – commonly called first closing and the rebuttal closing argument.

In this case – which went against the defendant – the court gave the following analysis:

“We also reject defendant’s contention that reversal is required because, during rebuttal closing argument, the prosecution improperly…

1. commenting on facts not in evidence;
2. suggesting that the jury need not worry about convicting defendant because he would get a new trial if new evidence came out;
3. appealing to the jury’s sympathy;
4. Arguing Inconsistent Theories of Prosecution and
5. Testifying for An Absent Witnesses
6. Injecting personal opinion into the case.
7. Vouching for a Witness’s Truthfulness
8. Eliciting Inadmissible Evidence
9. Presenting False Evidence

Closing argument must be confined to the evidence admitted at trial, the inferences that can reasonably and fairly be drawn from it, and the instructions of law submitted to the jury.

A prosecutor may comment on the evidence admitted at trial, the reasonable inferences that can be drawn from the evidence, and the instructions given to the jury,”

Claims of improper argument are evaluated in the context of all of the arguments that are made to a jury during a trial.

When a Defense lawyer hears improper argument, he or she must object. Their failure to object is a factor that may be considered in examining the impact of a prosecutor’s argument and may “demonstrate defense counsel’s belief that the live argument, despite its appearance in a cold record, was not overly damaging.”

The Legal Test To determine whether prosecutorial misconduct requires reversal, requires that the court of appeals evaluate the severity and frequency of the misconduct, any curative measures taken by the trial court to alleviate the misconduct, and the likelihood that the misconduct constituted a material factor leading to the defendant’s conviction.

Prosecutors are supposed to act in accordance with the highest standards of conduct. But unfortunately, that doesn’t always happen.

When a Colorado prosecutor acts improperly at trial, and the defendant is convicted, it could be the basis to overturn the conviction and grant a new trial. But, incredible as it may seem, this is not automatic. “The ultimate question to be decided is, had the prosecutor refrained from the misconduct, is it reasonably probable that a result more favorable to the defendant would have occurred.”

Prosecutorial misconduct generally refers to a dishonest act or attempt to persuade the jury or the court by the use of deceptive or reprehensible methods”. It can actually take place at any point during the Colorado criminal court process, although it most frequently occurs during pretrial proceedings, jury trials, and sentencing hearings.

Colorado courts have held that a variety of conduct constitutes prosecutorial misconduct. Some examples include (but are not limited to):

• Commenting on Inadmissible Evidence,
• Intentionally Eliciting Inadmissible And/or Prejudicial Answers from Witnesses,
• Conducting an Improper Cross-examination of the Defendant or Other Defense Witnesses,
• Appealing to Jurors’ Passion or Prejudice,
• Expressing Personal Opinions about the Defendant’s Guilt or a Witness’ Credibility,
• Purposely Misstating the Law or Evidence,
• Improper Name Calling,
• Improper Comment on Right to Silence
• Improper Examination
• Appeal to Religious Authority
• Impugning The Defense
• Engaging in Discriminatory Jury Selection
• Intimidating a Witness and
• Failing to Disclose Evidence Favorable to the Accused.

The term prosecutorial misconduct encompasses a wide range of improper tactics in criminal cases.

However, the majority of prosecutorial misconduct the eight types of misconduct findings fall into two types: improper witness examination and improper argument.

Witness examination prosecutors – direct questioning of their own witnesses or challenging of defense witnesses through cross-examination is improper when it misleads the jury or unfairly prejudices the defendant.

As for misconduct in argument, there are a multitude of ways in which prosecutors use improper methods in opening or closing arguments to try to persuade the jury to convict the defendant. Although courts give prosecutors wide latitude during argument, there are limitations; prosecutors who exceed them commit misconduct.

The specific categories, discussed in more detail below, are: eliciting inadmissible evidence in witness examination; vouching for a witness’s truthfulness; testifying for an absent witness; misstating the law; arguing facts not in evidence; mischaracterizing evidence; shifting the burden of proof; impugning the defense; arguing inconsistent theories of prosecution; appealing to religious authority; offering personal opinion; engaging in discriminatory jury selection; intimidating a witness; violating the defendant’s Fifth Amendment right to silence; presentingfalse evidence; and failure to disclose exculpatory evidence.

These categories are not all the ways in which prosecutors can commit misconduct; they are simply types of misconduct Colorado courts characteristically encounter.

Courts sometimes find prosecutors committed multiple acts of different types of misconductin a single case.

The most common form of improper witness examination is eliciting inadmissible evidence. It is misconduct for prosecutors to elicit inadmissible evidence in witness examinations, and especially improper when the examination violates a specific court order. It is standard practice for judges to make rulings before or during trial on the admissibility of evidence. Enforcement of such orders is critical to protect the rights of defendants and ensure that convictions are based only on reliable and relevant evidence. Prosecutors are required to instruct their witnesses not to testify about evidence excluded by court order. On cross-examination, prosecutors are prohibited from asking questions reasonably likely to result in answers containing prohibited information.

While questioning resulting in the introduction of inadmissible evidence can be unintentional, this is often not the case. This conduct results in irreparable harm; the jury cannot un- hear the evidence once it is out.

Prosecutors can also improperly elicit evidence that, while not specifically excluded by court order, is generally not allowed in criminal trials. A common example is attempting to use a defendant’s past criminal history to establish his/her guilt of the crime for which he/she is on trial.

The prosecutor’s opinion carries with it the weight of the Government and may induce the jury to trust the Government’s judgment rather than its own view of the evidence. Because of the probability that a prosecutor will unduly influence the jury in evaluating witness’s credibility, it is improper for prosecutors to vouch for the truthfulness of a witness.

Prosecutors must restrict their arguments to reasonable conclusions drawn solely from the evidence presented during trial; they cannot imply that they have other evidence of guilt that for reasons they cannot explain they are unable to present to the jury. When a prosecutor improperly tells the jury what a witness would have said, it denies the defendant the critical right to confront and cross-examine that witness, leaving the jury simply to believe the prosecutor’s version of what the testimony would have been.

The Rules of Professional Conduct prohibits an attorney from seeking to mislead the jury by a false statement of law. When prosecutors, bolstered by their authority, misstate the law, the result may be juror confusion or worse, a miscarriage of justice.

A jury must decide a criminal case based solely on the evidence presented at trial; jurors are prohibited from relying on or seeking outside knowledge. When prosecutors argue facts unsupported by evidence, they commit misconduct.

Prosecutor’s characterization of the evidence and what it purportedly shows can be extremely powerful in persuading a jury, especially in closing arguments. When prosecutors mischaracterize the evidence, they mislead the jury, unfairly prejudice the defendant and commit misconduct.

It is misconduct for a prosecutor to make irrelevant, insulting comments about the defendant or his lawyer or to argue that the defense is fabricated. Such arguments can prejudice the jury against the defense for reasons having nothing to do with the strength of the proof of guilt. Such attacks undermine both the presumption of innocence and the prosecution’s burden of proof by implying that the prosecutor personally knows that the defendant is guilty.

It is blatant prosecutorial misconduct for a prosecutor to argue irreconcilable theories to obtain convictions against two or more criminal defendants. For example, a prosecutor is prohibited from arguing in two separate trials, in connection with a crime in which he contends there was a single assailant, that each of the two defendants was that single assailant. Because a prosecutor’s duty is to seek the truth, rather than simply to obtain convictions, arguing inconsistent theories undermines the reliability of both convictions, as well as the integrity of the criminal justice system, and creates the real likelihood of convicting one or more innocent individuals. Beyond the constitutional principles of fundamental fairness and reliability ensured by the due process clause, a prosecutor’s knowing use of inconsistent arguments raises serious ethical considerations.

It is misconduct for the prosecutor to invoke religious authority. This issue generally arises in connection with punishment in the penalty phase of a capital case, where some prosecutors have argued that the Bible requires the death penalty or that God’s will must be carried out by the death penalty’s application. Such arguments interfere with a jury’s responsibility to administer state and federal law, and allow a prosecutor to substitute personal religious beliefs in a manner inimical to the constitutional separation of church and state.

Because prosecutors are representatives of the people of the state of Colorado, prosecutor’s statements have inherently greater authority than those of other attorneys or witnesses. For this reason, a prosecutor may not express a personal opinion or belief in a defendant’s guilt, where there is substantial danger that jurors will interpret this as being based on information atthe prosecutor’s command, other than evidence adduced at trial.

Prosecutorial misconduct concerning the burden of proof required for conviction is an especially serious violation. Given the greater power, resources and authority of the state, as represented by the prosecutor’s office, the presumption of innocence is the crucial safeguard against that power and a protection of a person’s liberty. That is because, in the cold reality of a typical courtroom on the first day of a jury trial, it is very difficult to really regard the accused as innocent. He has been brought to trial because the police and prosecutor’s respected representatives of the authority of the state believe he is guilty; that alone is difficult to surmount.

The presumption of innocence is designed to counterbalance these powerful persuasive forces: it places upon the state the burden of proving the defendant guilty beyond a reasonable doubt. his notion, basic in our law and rightly one of the boasts of a free society is requirement and a safeguard of due process of law. The presumption is based on the basic concept that it is worse to convict an innocent person than to let a guilty person go free.

Therefore, when a prosecutor tells a jury that the burden is on the defendant to prove his innocence, or that there is a presumption of guilt, or in any way implies that the defendant needs to present evidence to counter the prosecution’s case, that misconduct undermines ourgreatest protection against wrongful convictions.

One of the most egregious forms of prosecutorial misconduct is the presentation of false testimony or evidence. This prohibition is absolute. As the Supreme Court has held, “The prosecution cannot present evidence it knows is false and must immediately correct any falsity of which it is aware even if the false evidence was not intentionally submitted. Presenting false evidence to the jury harms the defendant’s right to a fair trial by lying to the jury about the evidence.

Every person accused of a crime in the United States is entitled to a trial by a jury of his or her peers. When selecting that jury, the prosecutor and defense attorney are prohibited from eliminating potential jurors based on their membership in specific racial, religious, ethnic or similar groups. As the United States Supreme Court has explained, the Constitution forbids the prosecutor to challenge potential jurors solely on account of their race or on the assumption that black jurors as a group will be unable impartially to consider the state’s case against a black defendant. It is prosecutorial misconduct to engage in discriminatory jury selection, thereby denying potential jurors the ability to participate in the administration of justice and perpetuating racism.

It is misconduct for a prosecutor to intimidate witnesses to keep them from testifying on behalf of the defendant. When prosecutors threaten witnesses, make them unavailable (for example, by arranging to have them deported) or order them not to speak to the defendant or his lawyer, they interfere with the defendant’s right to prepare and present his or her defense.

One of the ways that prosecutors intimidate witnesses is by threatening perjury or other charges. If such threats prevent testimony, they violate due process by interfering with the defendant’s right to present witnesses in his own defense. Misconduct includes statements to defense witnesses to the effect that they would be prosecuted for any crimes theyreveal or commit in the course of their testimony.

People arrested for crimes have an absolute right not to talk to the police or otherwise give evidence against themselves. The privilege against self-incrimination is one of the most important constitutional safeguards. The Supreme Court has long recognized that the right against compelled testimony is a fundamental right indeed, it is principle of justice so rooted in the traditions and conscience of our people as to constitute gone of the principles of a free government.

Among other consequences, it protects people from harsh, coercive interrogations by police, which result in unreliable confessions. In numerous cases where convicted defendants were later exonerated through DNA evidence, false confessions were produced by prolonged, coercive interrogations.

This very important protection against governmental abuse is undermined when prosecutors comment about the fact that a defendant invoked his right to be silent upon arrest. Prosecutors for example are prohibited from cross-examining a defendant about post-arrest silence. As the Supreme Court has noted, it would be fundamentally unfair and a deprivation of due process to allow the arrested person’s silence to be used to impeach an explanation subsequently offered at trial. The same unfairness results when a prosecutor improperly comments on the fact that a defendant chose not to testify at trial. Indeed, to allow a prosecutor to use the defendant’s silence at trial as evidence against him renders the right against self-incrimination meaningless: a defendant, knowing his silence would be used against him, would feel compelled to testify.

In 1963, the U.S. Supreme Court recognized the duty of prosecutors to disclose exculpatory evidence when it decided Brady v. Maryland. Under Brady, it is the prosecution’s responsibility to locate and disclose exculpatory information obtained by the police, because police are part of the prosecution team. When prosecutors make the decision as to whether evidence is Brady material, their belief that the defendant is guilty can create a distorting prism through which they tend to view the evidence inaccurately as a red herring or irrelevant. Brady violations are, by their nature, difficult to uncover; they become apparent only when the withheld material becomes known in other ways.

Brady violations are among the most pernicious forms of prosecutorial misconduct. Failure to disclose Brady material keeps the jury from considering proper and admissible evidence supporting the innocence of the defendant. Without access to this evidence, innocent defendants face a serious risk of being convicted for a crime they did not commit.

Yet, nearly a half-century after Brady, prosecutors still violate this constitutional imperative. As one of the nation’s leading scholars on prosecutorial misconduct and Brady violations, Professor Bennett L. Gershman has stated, A prosecutor’s violation of the obligation to disclose favorable evidence accounts for more miscarriages of justice than any other type of malpractice, but is rarely sanctioned by courts, and almost never by disciplinary bodies.

But remember, engaging in these types of acts do not by themselves necessarily constitute grounds for a mistrial or a new trial. The test is whether the conduct is so prejudicial to the defendant that it cannot be cured by either striking the evidence,

and – or

instructing the jury to disregard the improper comment, action, testimony, etc

If you can prove that the prosecutorial misconduct was so prejudicial that it couldn’t be cured by one of the above solutions, you are entitled to prevail on a Colorado motion for a new trial.

However, this rule only applies where … your Colorado criminal defense attorney promptly objects to the alleged misconduct at the time it’s committed, and-asks the judge to instruct the jury to disregard the impropriety.

Applying the harmless error doctrine, an appellate court may affirm a conviction even where prosecutorial misconduct or other errors occurred, if it believes that the error did not affect the outcome of the case. Only a small percentage of prosecutorial misconduct cases are able to surmount this high hurdle. While this doctrine was originally intended to eliminate the need for multiple retrials for small technical mistakes, it has evolved to the point that it is now applied even to constitutional violations.

We find the prosecutor engaged in a troubling and extensive pattern of misconduct…[D]espite the gravity of the misconduct, we are convinced it did not affect the verdict…In another case… it might well require reversal.”
– People v. McKenzie, First District Court of Appeal

The egregiousness of a prosecutor’s misconduct does not determine the harmfulness of the error; the issue for harmless error review is whether despite the misconduct, the defendant received a fair trial.

That means that very serious misconduct can be deemed harmless If the lawyer fails to take these steps in response to an obvious display of prosecutorial misconduct, there may be a later claim of ineffective assistance of counsel.

If you have additional questions about Colorado’s laws relating to prosecutorial misconduct, or you would like to discuss your case confidentially us, do not hesitate to contact us at the Steinberg Colorado Criminal Defense Law Firm